STATE OF INDIANA		)	SS:	BEFORE THE INDIANA DEPARTMENT OF
		)
COUNTY OF MARION		)		ENVIRONMENTAL MANAGEMENT
COMMISSIONER OF THE DEPARTMENT					)
OF ENVIRONMENTAL MANAGEMENT,					)
					)
Complainant,					)
					)
	v.				)	Case No. 2018-25130-C
					)
ALEX StAMMEN,					)
					)
Respondent.					)

AGREED ORDER

Complainant and Respondent desire to settle and compromise this action without hearing or adjudication of any issue of fact or law, and consent to the entry of the following Findings of Fact and Order. Pursuant to IC 13-30-3-3, entry into the terms of this Agreed Order does not constitute an admission of any violation contained herein. Respondent’s entry into this Agreed Order shall not constitute a waiver of any defense, legal or equitable, which Respondent may have in any future administrative or judicial proceeding, except a proceeding to enforce this order.

I. FINDINGS OF FACT

1. Complainant is the Commissioner (“Complainant”) of the Indiana Department of Environmental Management (“IDEM”), a department of the State of Indiana created by Indiana Code (“IC”) 13-13-1-1.

2. Respondent is Alex Stammen, who owns/operates confined feeding operation (“CFO”), Farm ID No. 6943, CFO Approval No. AW-6648, located at County Road 400 East and County Road 700 South, in Portland, Jay County, Indiana (“Site”).

3. IDEM has jurisdiction over the parties and the subject matter of this action.

4. Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation (“NOV”) May 18, 2018 via Certified Mail to:

Alex Stammen, Owner/Operator

2105 Sharpsburg Road

Fort Recovery, OH 45846

5. Respondent owns and operates a hog CFO. IDEM approved Respondent’s CFO application on February 24, 2017.

6. During an investigation, including an inspection conducted on February 22, 2018 conducted by a representative of IDEM, the following violations were found:

a. Pursuant to Indiana Code (“IC”) 13-18-10-2.2(a), not more than thirty (30) days after the completion of construction or expansion of a confined feeding operation, the applicant shall execute and send to the department an affidavit that affirms under penalties of perjury that the confined feeding operation:

(1) was constructed or expanded; and

(2) will be operated;

in accordance with the requirements of the department’s approval.

As noted during the investigation, Respondent submitted the Completed Construction Affidavit Form on December 5, 2017. The Affidavit indicates the construction as complete, including the perimeter drain outlet system. During the February 22, 2018 inspection, IDEM observed buildings P1 and P2 populated with swine prior to installing the perimeter drain outlet system in accordance with the requirements of the February 24, 2017 CFO approval. The system discharges through a flexible plastic pipe onto the ground between the P1 and P2 buildings near the mortality compost P3. The CFO Approval requires the installation of a rock discharge and vegetation filter area behind buildings P1 and P2 between the west endwall of each building and the woods.

On March 2, 2018, IDEM received a second Completed Construction Affidavit Form from Respondent. The Affidavit indicates the construction of buildings P1 and P2 with exception for the perimeter tile outlet permanent installation.

b. Pursuant to 327 IAC 19-12-4(s), the applicant shall execute and send to the commissioner an affidavit, under penalty of perjury, that a waste management system was constructed, and shall be operated, in accordance with the requirements of the approval and this article. The owner/operator shall submit to IDEM, on a form provided by the department, the affidavit within thirty (30) days after the date construction of an approved waste management structure is completed, and prior to the introduction of any animals or manure. The affidavit must be completed, notarized, and returned to IDEM assuring the waste management system was constructed and shall be operated in accordance with the requirements of the approval. The affidavit must also include identification of what parts of the waste management system are completed at the time of submittal. If an owner/operator performs partial construction of an approved facility and wishes to utilize that portion prior to completing construction of the entire facility, multiple affidavits shall be submitted. No portion of a waste management system, including animal feed and similar feedstock storage areas, shall be utilized unless that portion, or a combination of the waste management system for that portion, is completely constructed prior to the introduction of animals and provides a minimum of one hundred eighty (180) days storage for manure, wastewater, and/or leachate.

As noted during the investigation, Respondent submitted an incorrect Completed Construction Affidavit Form on December 5, 2017. The Affidavit indicates the construction as complete, including the perimeter drain outlet system. The perimeter drain outlet system was not completed in accordance with the requirements of the CFO Approval.

c. Pursuant to 327 Indiana Administrative Code (“IAC”) 19-12-4(d), all liquid manure storage facilities must be constructed according to the Indiana NRCS Conservation Practice Standard Code 313: Waste Storage Facility, October 2016. Construction of all liquid manure storage facilities approved after the effective date of this article must be certified upon completion by a registered professional engineer on a form provided by the department. The engineer’s certification must be kept in the operating record and submitted with the affidavit required by subsection (s).

As noted during the investigation, Respondent failed to submit the Professional Engineer (“PE”) Certification Construction of Concrete Liquid Manure Storage Structures Form within thirty (30) days after the date of completing the construction of buildings P1 and P2. IDEM received the PE Certification Form on February 12, 2018. The PE Certification Form lists the construction completion date as November 12, 2017.

During the February 22, 2018 inspection, IDEM observed buildings P1 and P2 populated with swine prior to installing the perimeter drain outlet system in accordance with the requirements of the February 24, 2017 CFO Approval. The system discharges through a flexible plastic pipe onto the ground between buildings P1 and P2 near the mortality compost P3. The CFO Approval requires the installation of a rock discharge and vegetation filter area behind buildings P1 and P2 between the west endwall of each building and the woods.

On March 6, 2018, IDEM received a second PE Certification Form from Respondent. The PE Certification Form indicates final grade could not completed due to weather and the outlet tile and associated outlet will be installed by early July 2018. On March 15, 2018, IDEM issued a Notice of Deficiency (“NOD”) for the February 12 and March 6, 2018 PE Certification Forms. The NOD requires Respondent to submit within ten (10) days of receipt of the NOD the details of the temporary measure to outlet the groundwater around the concrete pits. Also, the NOD informs Respondent that once the perimeter outlet drain system is complete, new Completed Construction Affidavit and PE Certification Forms are required to be submitted to IDEM.

On March 23, 2018, IDEM informed Respondent the use of the flexible plastic pipe as a temporary measure is adequate. Additionally, IDEM informed Respondent the early July 2018 time frame for completing the perimeter tile outlet drainage system as specified in the CFO Approval is acceptable.

On July 12, 2018, IDEM inspected the Site and found the permanent outlet drainage system installed as required by the CFO Approval.

7. In recognition of the settlement reached, Respondent waives any right to administrative and judicial review of this Agreed Order.

II. ORDER

1. This Agreed Order shall be effective (“Effective Date”) when it is approved by Complainant or Complainant’s delegate, and has been received by Respondent. This Agreed Order shall have no force or effect until the Effective Date.

2. Respondent shall comply with the statutes, rules, and/or permit conditions listed in the findings above.

3. Within thirty (30) days of the Effective Date, Respondent shall submit a new Completed Construction Affidavit Form and Professional Engineer Certification Form.

4. Respondent is assessed and agrees to pay a civil penalty of Two Thousand Eight Hundred Dollars ($2,800.00). Said penalty amount shall be due and payable to the Environmental Management Special Fund within thirty (30) days of the Effective Date; the 30^th day being the “Due Date”.

5. In the event the terms and conditions of the following paragraphs are violated, Complainant may assess and Respondent shall pay a stipulated penalty in the following amount:

Order Paragraph 3

$200 per week late

6. Stipulated penalties shall be due and payable no later than the 30^th day after Respondent receives written notice that Complainant has determined a stipulated penalty is due; the 30^th day being the “Due Date”. Complainant may notify Respondent at any time that a stipulated penalty is due. Failure to notify Respondent in writing in a timely manner of stipulated penalty assessment shall not waive Complainant’s right to collect such stipulated penalty or preclude Complainant from seeking additional relief against Respondent for violation of this Agreed Order. Neither assessment nor payment of stipulated penalties shall preclude Complainant from seeking additional relief against Respondent for a violation of this Agreed Order; such additional relief includes any remedies or sanctions available pursuant to Indiana law, including, but not limited to, civil penalties pursuant to IC 13-30-4.

7. Civil and stipulated penalties are payable by check to the “Environmental Management Special Fund.” Checks shall include the Case Number of this action and shall be mailed to:

Indiana Department of Environmental Management

Office of Legal Counsel

IGCN, Room N1307

100 North Senate Avenue

Indianapolis, IN 46204

8. In the event that the monies due to IDEM pursuant to this Agreed Order are not paid on or before their Due Date, Respondent shall pay interest on the unpaid balance at the rate established by IC 24-4.6-1. The interest shall be computed as having accrued from the Due Date until the date that Respondent pays any unpaid balance. Such interest shall be payable to the Environmental Management Special Fund, and shall be payable to IDEM in the manner specified in Paragraph 7, above.

9. This Agreed Order shall apply to and be binding upon Respondent and his successors and assigns. Respondent’s signatories to this Agreed Order certify that they are fully authorized to execute this Agreed Order and legally bind the party they represent. No change in ownership, corporate, or partnership status of Respondent shall in any way alter his status or responsibilities under this Agreed Order.

10. In the event that any terms of this Agreed Order are found to be invalid, the remaining terms shall remain in full force and effect and shall be construed and enforced as if this Agreed Order did not contain the invalid terms.

11. Respondent shall provide a copy of this Agreed Order, if in force, to any subsequent owners or successors before ownership rights are transferred. Respondent shall ensure that all contractors, firms and other persons performing work under this Agreed Order comply with the terms of this Agreed Order.

12. This Agreed Order is not and shall not be interpreted to be a permit or a modification of an existing permit. This Agreed Order, and IDEM’s review or approval of any submittal made by Respondent pursuant to this Agreed Order, shall not in any way relieve Respondent of his obligation to comply with the requirements of its applicable permits or any applicable Federal or State law or regulation.

13. Complainant does not, by its approval of this Agreed Order, warrant or aver in any manner that Respondent’s compliance with any aspect of this Agreed Order will result in compliance with the provisions of any permit, order, or any applicable Federal or State law or regulation. Additionally, IDEM or anyone acting on its behalf shall not be held liable for any costs or penalties Respondent may incur as a result of Respondent’s efforts to comply with this Agreed Order.

14. Nothing in this Agreed Order shall prevent or limit IDEM’s rights to obtain penalties or injunctive relief under any applicable Federal or State law or regulation, except that IDEM may not, and hereby waives its right to, seek additional civil penalties for the same violations specified in the NOV.

15. This Agreed Order shall remain in effect until IDEM issues a Resolution of Case letter to Respondent.

TECHNICAL RECOMMENDATION:				RESPONDENT:
Department of Environmental Management
By: _________________________				By: _________________________
	Nancy Johnston, Section Chief
	Enforcement Section			Printed: ______________________
Office of Land Quality
				Title: ________________________
Date: __________________				Date: _______________________
				COUNSEL FOR RESPONDENT:
				By: ________________________
				Date: ______________________
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL
MANAGEMENT THIS		______	DAY OF	________________________,	20__.
				For the Commissioner:
				Signed on 1/31/19
				Peggy Dorsey, Assistant Commissioner
				Office of Land Quality